Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise this afternoon to speak about Australia’s antiterrorism laws. Last night SBS aired a superb documentary entitled The Trial which examined Australia’s biggest terrorism trial so far. The documentary was aired across Australia, apart from in Victoria where appeals from the case that were discussed are currently underway. I do not propose to discuss details of that case except to pay tribute to the dedicated and very hardworking members of the legal profession who have spent, in some cases, literally years of their lives trying to uphold the democratic values and rights that have been eroded by the corrosive nature of the antiterror laws that were passed by this parliament.

Greg Barns, Rob Stary, Fiona Todd and Grace Morgan are among those people who have asked juries, media outlets and members of parliament to thoroughly examine the costs and the benefits of the antiterrorism laws as they stand today. They have asked, ‘How far are we prepared to go before decision making around threats and the perception of threats undermines the very foundations of our justice system?’ They have asked, ‘How far we are prepared to let authorities provide such frail bases for decisions around the classification of people and their detention?’ and, ‘Who should be overseeing this decision making?’ They have also asked us how much exactly we value our right to a fair trial and whether or not it is fair for paltry legal aid representation, volunteers, to be up against an army of silks, many QCs and the seemingly bottomless resources of government departments and law enforcement and surveillance agencies.

These issues were drawn out and discussed last night in the SBS documentary. One of the key points raised is that there is more at stake than just the fate of the accused. The senior British judge Lord Hoffmann said in the landmark Belmarsh ruling:

The real threat to the life of the nation ... comes not from terrorism but from laws such as these. It calls into question the very existence of an ancient liberty of which this country has, until now, been very proud: freedom from arbitrary arrest and detention.

He continued in his ruling to say that:

Terrorist crime, serious as it is, does not threaten our institutions of government or the existence as a civil community. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism, but from laws such as these. That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory.

The Australian parliament, in passing many of the antiterrorism laws, was set up to fail. Mistakes were made when laws that seriously curtailed human rights, civil rights and fair trials were hastily enacted following the horrific crimes of 11 September. Mistakes were inevitable when the government of the day would not allow the parliament to even debate each bill individually, even though the antiterrorism package constituted some of the most dramatic changes ever made to Australia’s security and legal environment. Mistakes were made and were inevitable when amendments were proposed and made available to the Senate less than 24 hours before the commencement of debate in this chamber. The parliament was stripped of the time necessary to ensure that the laws were adequate to prevent, deter and pursue terrorist networks while ensuring that any limits on our civil liberties were transparent and properly understood. I was working for Senator Siewert here in the week that those laws were rammed through this chamber and I can well remember the pressure cooker environment in which the Senate was deprived of its most basic accountability role. This is history and we are all living with the mistakes. The documentary last night showed only too clearly the mistakes of fantastically expensive court cases, with many of the matters thrown out of court, unworkable laws and huge structural asymmetries between prosecutors and defendants.

The government is moving impossibly slowly on the long overdue proposal to establish an independent reviewer of terrorism laws, a tentative first step to acknowledging that voting blindly with the Howard government to avoid being wedged over the fear of terrorism was a terrible mistake. All that is proposed is an office to assess whether or not the laws are effective and proportionate. It was first proposed when the major body of terror laws was being rammed through this place at the end of 2005, and they drew partly on the British model, which was legislated for. The proposal was raised again in 2007 by Mr Petro Georgiou and in here by Senators Troeth and Trood in a private senator’s bill. The Senate inquiry that followed drew out very lively and important debate and expertise. The Greens participated fully in that process and made a number of contributions to strengthen the bill. Despite the government’s sulky absence at the time, a fruitful debate was also held when the bill was passed nearly a year ago by the Senate. Of course, then the government used weight of numbers to bury the legislation in the House of Representatives and, to date, no such office yet exists.

The government did eventually deliver their own bill to establish what they quaintly call a ‘monitor’. The government sees this as one part-time reviewer, drawing two staffers from the Prime Minister’s office, with sketchy reporting responsibilities and a very ambiguous mandate. I think what we are being told is that the government views the reviewing of 30 new laws and more than 80 very complex amendments to the Criminal Code and Crimes Act as a part-time position supported by two staff members. However, the office does have the potential to play an essential accountability role, reviewing for the government and for the broader public whether the laws that are in place at the moment are necessary, proportional and effective at meeting their stated objectives.

I would like to know: how many more times will debate on establishing this office be delayed? The Australian Greens have had sensible amendments ready for several months. The bill has sat forlornly on the shelf. It sits on the Order of Business for debate tomorrow, but I do not think there is a person left in this building who believes that the Senate will actually get time to debate it before February at the very earliest. It will sit to one side and every word of the Howard era terror laws will stay on the statute books for that period. Instead, we will endure a fortnight of contrived debate over what kind of failed emissions trading scheme Australia should adopt.

When exactly will the government respond to the several thousand inputs received on the Attorney’s national security legislation discussion paper? When will we see a response to the year’s worth of patient advocacy by groups like AMCRAN, who continually remind us that we risk directly criminalising particular religious or ethnic communities in the application of not the letter but the spirit of these laws?

At the time of its release we did commend the Attorney for providing an opportunity for public comment on the nearly 450 pages of the national security legislation discussion paper, and we have encouraged and supported community engagement in that process. It was certainly a more honest attempt at engaging the community than we were given in 2005. But in substance the paper was, I think, a careful demonstration that the government intends to deepen rather than reverse key aspects of the Howard-Ruddock terror laws. The Greens did recognise the possibility of the Rudd government following in the same unthinking groove as its predecessor and so we spent a year consulting, drafting and then participating in the Senate inquiry into a bill to cut through the silence and delay that characterises this sometimes shallow debate. The proposals we put forward in the Anti-Terrorism Laws Reform Bill are those which we believe lack the merits of even being deserving of a review by the National Security Legislation Monitor.

The Greens joined others on the committee at the time in hoping that the expertise and debate generated by this inquiry would feed into the government’s discussion paper process on the antiterrorism laws. The process was a valuable lesson for me in how productive and collaborative Senate committee work can be, with the Legal and Constitutional Affairs Legislation Committee putting a lot of work into engaging with the genuine issues which were raised.

I hope the government will note the high degree of agreement among the submitting parties in supporting the direction of the bill that we put forward and that legal experts and organisations making submissions to the Attorney’s discussion paper process have also commended the approaches taken in the Australian Greens bill. Normally, the recommendation of committees inquiring into private senators’ bills often conclude along the lines of, ‘This legislation should be locked in a box for ever and never seen again or sent to COAG, whichever will take the longer period of time.’ In this case, the committee did no such thing. It recommended that the bill and its accompanying submissions and transcripts should be referred to the Attorney for consideration as part of their process. I think that is at least a tacit acknowledgement of the value of the proposals we have made. That leaves the big question of whether or not the government will listen. I know of at least 1,500 submissions that were made outlining concerns with the approach taken by the government in its discussion paper or the fact that there is still no sign of the counterterrorism white paper which you would assume should underpin law reform proposals, rather than those things coming the other way around.

Another issue that must come under more public scrutiny—a direct issue that actually involves people as a result of these processes—is the enormous expenditure of public money on the prosecution of the cases against Dr Haneef, David Hicks, Mamdouh Habib, Jack Thomas and others such as those which occurred under Operation Halophyte. The amounts at stake are staggering—and we have been pursuing this over a period of months—when you add up what the Attorney General's Department, the Department of Public Prosecutions, the QCs engaged, their travel, the AFP, the ASIO-spying and the other agencies too numerous to even name cost and compare that with the legal aid provided for the defence. We are talking about a 10 to one or a 20 to one ratio, not to mention the enormous administrative hoops that need to be jumped through by not just the people defending those who found themselves at the middle of these cases but also those defending the public interest.

As the inquiry into my Anti-Terrorism Reform Bill has flagged, there are some laws which are so extreme, repugnant, redundant or inappropriate that they should be abolished and not even subject to the dignity of review. These laws obviously include those that allowed the Haneef scandal to unfold, including things like the excessive ‘dead time’ provisions, undue surveillance and invasion of privacy. The laws relating to sedition offences and the ‘reckless possession of a thing’ are also amongst those that should be abolished. These laws need to be removed to allow the solid criminal laws and procedures, built up over more than 100 years in Australia, to continue doing the job they were doing before 2001 in prosecuting and penalising the kinds of violent crimes that characterise terrorist acts.

Our parliament and our community did not get an opportunity to hold a thorough and considered debate over the terrorism laws when they were first introduced; nor did we or they consent to the substantial reallocation of resources away from health care, environmental protection and education to carelessly defined security imperatives and the entrenchment of a massive internal surveillance effort. Now is the time for this thorough and considered debate about methods for reducing the risk of terrorist violence while strengthening our democracy and upholding the values which these laws were supposed to defend. While I think some leaders and commentators deeply fear the accusation of being soft on terrorism, believing it to be corrosive of their public perception, their standing or perhaps their masculinity, the Greens believe that to maintain these laws in their current form is corrosive of democracy itself and the rule of law on which it is based. The benefit of hindsight and the passage of time have revealed some of the terror legislation as irrational, unusable and extreme. Terrorism is a horrendous crime. There is no need to discuss the importance of prosecuting these offences or whether or not to resource the people who do this important work. What is in dispute is how we fight these crimes and whether our current approach is working. We cannot afford to delay the reform of our antiterror laws a day longer.